LINDSAY STEWART III DAN SHORT AND PAIGE SHORT APPELLANTS v. CITY OF PARIS BOARD OF COMMISSIONERS OF THE CITY OF PARIS MAYOR DONALD KISER IN HIS OFFICIAL CAPACITY JIM LONG HERMAN HUTSELL JEROME HARNEY AND JANET PATTON IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF COMMISSIONERS OF THE CITY OF PARIS AND BILLY JOE RUDD APPELLEES

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Court of Appeals of Kentucky.

LINDSAY STEWART, III;  DAN SHORT AND PAIGE SHORT APPELLANTS v. CITY OF PARIS;  BOARD OF COMMISSIONERS OF THE CITY OF PARIS;  MAYOR DONALD KISER, IN HIS OFFICIAL CAPACITY;  JIM LONG, HERMAN HUTSELL, JEROME HARNEY, AND JANET PATTON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF COMMISSIONERS OF THE CITY OF PARIS;  AND BILLY JOE RUDD APPELLEES

NO. 2010–CA–001847–MR

Decided: June 01, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEF FOR APPELLANTS:  W. Henry Graddy, IV Midway, Kentucky BRIEF FOR APPELLEE:  Richard V. Murphy Lexington, Kentucky Charles D. Cole Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

This is an appeal from the Bourbon Circuit Court's order upholding the City of Paris Board of Commissioners' rezoning decision regarding a portion of land located on Paris Pike in Bourbon County, Kentucky.   After careful review and for the reasons stated herein, we affirm the order of the Bourbon Circuit Court.

In 2002, Appellee Billy Joe Rudd (Rudd) purchased a 228–acre tract of land (hereinafter “the Property”) located on a portion of U.S. Highway 27 (Paris Pike) that runs from Lexington to Paris, Kentucky.   At the time of the purchase, the Property was surrounded by land zoned A–1 and used for agricultural purposes.   The Appellants, Lindsay Stewart, III, and Dan and Paige Short, are two of the adjoining farm owners.   The Shorts own a farm to the south of the Property and use it for agricultural purposes.   Stewart owns a farm to the north of the Property called Lynwood Farm, which is an active thoroughbred breeding operation.   The Property adjoins two other horse farms, Ann Marie Farm and Whispering Oak Farm, but the owners are not parties to this appeal.

At the time Rudd purchased the Property, it had most recently been used to raise tobacco and cattle.   The Property had been annexed into the City of Paris, but the City had elected not to change the A–1 zoning designation.   Because the Property is included in the Paris Pike/Lexington Road Transition Area Overlay Zone (Overlay Zone), there are certain restrictions in addition to the underlying A–1 zoning.   The intent of the transition area is literally to provide a transition from the farms in the central part of Paris Pike/Lexington Road to the urban uses within Lexington to the south and Paris to the north.   Pursuant to the Inter–Local Cooperation Agreement (“the Agreement”) adopted in 1993 between Paris and Lexington, a Paris Pike Corridor Small Area Plan was approved.   Additionally, each governmental entity agreed to adopt a zoning regulation creating a Transition Overlay Zone. The Agreement provided that the Transition Area Overlay Zone had to include at least the first 1,000 feet of land from the road.   The Overlay Zone, as adopted by Paris on October 24, 2000, includes the Property at issue herein.

Since purchasing the property, Rudd has requested two separate zoning changes.   In 2003, he requested a change from the A–1 zone to an R–1 zone, which allows single-family homes on a lot with a minimum size of one-half an acre.   The Paris–Bourbon County Joint Planning Commission (“the Planning Commission”) recommended denying this zone change, and the Board of Commissioners of the City of Paris (“the Board”) denied the change based on a finding that the existing agricultural zoning was appropriate and the proposed R–1 zoning was inappropriate.   The zoning change denial was upheld by the Bourbon Circuit Court, Division 1, in Rudd, et al. v. City of Paris, et. al, No. 04–CI–0079, August 21, 2006.

One month later, on September 28, 2006, Rudd requested a change to the R–3 zone, which requires a minimum lot size of 7,200 square feet, and which was also recommended for denial by the Planning Commission (the “2006 Application”).   The Board voted to have a hearing on the matter, and the hearing was held on December 13, 2006.   At the hearing, the Board heard testimony from several people in the community, including some adjoining land owners, an attorney, a real estate agent, and the Rudd's architect.   The testimony included the objection that the same property had been subject to a previous zone change request in 2003.   However, the Board noted that there were several key changes and differences between the 2003 application and the 2006 application.

Those changes included the fact that in 2004, a comprehensive plan (“the 2004 Comprehensive Plan”) had been adopted, which designated this property for residential development and removed the property from the agricultural designation.   Also, the Board noted that the urban growth boundary for the City of Paris had been extended to include the Property.   The 2006 Application included forty acres of green space as a focal point of the development to preserve the stream going through the Property, which was not included in the 2003 plan.   The 2006 Application also included a five-acre park proposed for dedication to the City which was not proposed in the 2003 plan.   Finally, the 2006 application included only two proposed access points to Lexington Road, where as the 2003 plan provided for separate driveways for each of the five-acre tracts across the front of the Property.

After the hearing, the Board voted unanimously to approve the zoning change request, finding that the existing A–1 agricultural zoning was inappropriate, the R–3 zoning was appropriate, and that the application complied with the 2004 Comprehensive Plan. In order to assure that the property within the Overlay Zone would remain in five-acre tracts, the Board rezoned the area of the Property which was within 1,000 feet of Lexington Road to the “Residential Paris Pike Corridor Transition Zone” in its ordinance and findings.   The area beyond 1,000 feet from the right-of-way of Lexington Road was zoned to the single-family residential R–3 zone.   The Board adopted the proposed findings tendered by Rudd's attorney, finding that the zoning change proposal was in agreement with the goals and objectives of the 2004 Comprehensive Plan.

The Appellants appealed the Board's approval of the zoning change to the Bourbon Circuit Court, which affirmed the Board's decision.   The court held that there was substantial evidence to support the Board's conclusion that the zoning change was in agreement with the Comprehensive Plan. Because the court found that there was evidence to support the Comprehensive Plan finding, the court found that it was not necessary to deal with the issue of whether there was substantial evidence to support the second finding that the existing agricultural zoning was inappropriate and the proposed residential zoning was appropriate.   This appeal now follows.

Kentucky courts are clear that “judicial review of administrative action is concerned with the question of arbitrariness.”  American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky.1964).   The specific grounds for judicial review are 1) whether the action was in excess of granted powers;  2) whether procedural due process was afforded;  and 3) whether the action was based on substantial evidentiary support.  Id.

In the instant case, no argument is made that the Board acted in excess of its granted powers in changing the zoning designation from A–1 to R–3, and there is no argument that procedural due process was not afforded.   Thus, the circuit court limited its review to whether the Board's actions were supported by substantial evidence.   Only if there is substantial evidence in the record to support the zoning decision should the court defer to that decision.   Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky.1981).   Substantial evidence is defined as evidence of “substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people.”  Warren County Citizens for Managed Growth, Inc. v. Board of Com'rs of City of Bowling Green, 207 S.W.3d 7, 16 (Ky.App.2006) (footnote omitted).

“In every case involving the judicial review of the proceedings before a zoning commission the presumption is that the action of the commission was reasonable and was carried out according to law.”  Hatch v. Fiscal Court of Fayette County, 242 S.W.2d 1018, 1021 (Ky.1951).   In sum, “if any substantial evidence exists to support the action [of the deciding authority], it cannot be found to be arbitrary and will be sustained.”  Taylor v. Coblin, 461 S.W.2d 78, 80 (Ky.1970).

The Appellants argue that the circuit court erred when it held that the zone map amendment was in agreement with the 2004 Comprehensive Plan and was based on substantial evidence.   Kentucky Revised Statutes (KRS) 100.213 sets forth the criteria for granting a zone change and states:

(1) Before any map amendment is granted, the planning commission or the legislative body or fiscal court must find that the map amendment is in agreement with the adopted comprehensive plan, or, in the absence of such a finding, that one (1) or more of the following apply and such finding shall be recorded in the minutes and records of the planning commission or the legislative body or fiscal court:

(a) That the existing zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate;

(b) That there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.

Thus, only one of the three criteria must be found in order for the Board of Commissioners to grant a zone change.   In the instant case, the Board found that two of the criteria applied:  first, that the proposal was in agreement with the 2004 Comprehensive Plan, and second, that the existing agricultural zoning is inappropriate and that the proposed residential zoning is appropriate for the property.   However, as stated above, the circuit court limited its review to whether the Board's finding that the zone change complied with the Comprehensive Plan was supported by substantial evidence.

The trial court found that the Board conducted a thorough investigation and found that the 2006 application was in agreement with the 2004 Comprehensive Plan for several reasons.   First, the Board found that, unlike previous comprehensive plans, the Property is now included inside the Urban Services Boundary (USB) of Paris and Bourbon County.   In fact, this property was specifically removed from the “agricultural use” category in the 2004 Comprehensive Plan.

Second, the Board found that the proposal agrees with the 2004 Comprehensive Plan “as a whole” because the proposal promotes the Plan's Goals and Objectives.   Specifically the Board found that:

1. The proposal agrees with Goal 2, encouraging growth and redevelopment in a planned and orderly manner.   The property is within the urban growth boundary and is adjacent to other property within the city and which have urban services.

2. The proposal complies with Goal 3 by assisting and providing an adequate capacity of land to facilitate growth for all types of land uses.

3. [The] proposal agrees with the economic resources, Goal 1, to accommodate economic growth and stability in Bourbon County and to facilitate housing as a growth industry.

4. [The] proposal agrees with the goal relating to housing resources because, as the testimony showed, this property will provide affordable housing and will provide acreage for future housing demand.

5. The design of this property, including the 40–acre greenway, meets Objective 8 of the Environmental Resources goal to encourage the layout of new development to fit as much as possible to the natural topography and drainage ways of the site.

6. [The] proposal agrees with the infrastructure, specifically Objective 2 which requires future development which is in close proximity to existing public utility systems to connect into the existing system.   The evidence showed that all utilities, including sanitary sewer, are available to the site.

The Board also looked at other portions of the Comprehensive Plan, such as the Land Use Element, and found that the Plan showed that many Bourbon County residents are migrating out, resulting in the county having a decline in population in the category of persons forty years of age or younger.   The Board found that the testimony at the hearing supported the finding that the proposed development on the Property would attract new families to the area.   Further, the Board found that the development would promote home building and construction, which would address the trend of steadily declining housing stock in Bourbon County.   The Board found that the Comprehensive Plan indicated that 55% of Bourbon County's housing is rental, and that new home ownership options are needed.   The Board found that the proposed zoning change and development would provide new home ownership options.   Finally, the Board concluded that the Comprehensive Plan has targeted a higher growth rate for Paris, and this development provides some of the housing which is necessary to fulfill the goal of the higher growth rate.

The trial court examined the Board's stated reasons for granting the zoning change from A–1 to R–3 and found they were supported by substantial evidence and were not arbitrary.   We agree with the trial court that the Board had substantial evidence to support its finding that the zoning change complied with the 2004 Comprehensive Plan. The Appellants make the argument that because the prior zone change was denied and upheld by a different division of the circuit court, the trial court's findings in the instant case must be in error.   We agree with the Appellees that the Board considered the 2006 application for the zoning change in light of the 2004 Comprehensive Plan, which was adopted after Rudd's 2003 application.   Thus, we disagree that the Board and the trial court were bound by the ruling of the circuit court when it denied the 2003 application.

The Appellants' further argue that although factors such as traffic, drainage, and sewage should be considered when determining whether a proposed map amendment is in agreement with the community's comprehensive plan, the classification of the property under the land use plan is the prime consideration.   See 21 st Century Dev. Co. LLC. v. Watts, 958 S.W.2d 25 (Ky.App.1997).   See also McKinstry v. Wells, 548 S.W.2d 169, 171 (Ky.App.1977).   The Appellants argue that the 2004 Comprehensive Plan includes a land use element which provides that the property has been identified for “very low density, estate-type housing at densities of one unit per five acres.”   They argue that the 2006 Application provided for a density for the Property that is nine times greater than recommended by the Land Use Element, and that it was arbitrary for the Board and the trial court to uphold the zoning change in this regard.

We agree with the Appellees that the Board did consider the Land Use Element when it specifically removed this property from the agricultural land use category and placed it inside the urban service boundary and designated it for residential development.   In addition, the Board looked at other elements of the Comprehensive Plan such as the statistics regarding out migration, the need for jobs in the community, and the need to promote housing as an industry in Paris and Bourbon County.   A review of the record indicates that the Board looked at the Comprehensive Plan as a whole, and its decision to change the zoning of the Property was not arbitrary.   The trial court did not err in upholding the Board's ruling, as the ruling was supported by substantial evidence and was not arbitrary.

Despite the fact that KRS 100.213(a) only requires that the Board find that the zoning map amendment is in agreement with the Comprehensive Plan or that the zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate, the Appellants argue to this Court that the circuit court erred in not considering its other arguments.   We disagree.  KRS 100.213 clearly states that the Board or fiscal court “must find that the map amendment is in agreement with the adopted comprehensive plan or in the absence of such a finding that one (1) or more of the following apply ․” Because the Board found that the map amendment was in agreement with the Comprehensive Plan, it did not need to look at the other factors in subsections (a) and (b).  Thus the trial court did not err in failing to address the Appellants' arguments regarding these factors below and we will not now address them on appeal.

Based on the record, the Board's decision to grant the zone map amendment and change the zoning designation of the Property from A–1 to R–3 was supported by substantial evidence.   Accordingly, the circuit court's holding that the Board's actions were not arbitrary was not in error.   We therefore affirm the September 8, 2010, order of the Bourbon Circuit Court.

ALL CONCUR.

LAMBERT, JUDGE: